United States District Court, Northern District of Illinois, E.D
January 16, 1985
CHARLENE EVANS, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFF,
CITY OF EVANSTON AND DIRECTOR OF PERSONNEL, CITY OF EVANSTON, DEFENDANTS.
The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff, Charlene Evans*fn1 has sued defendants, the City
of Evanston and the Director of Personnel of the City of
Evanston, in a two-count Amended Complaint alleging (1)
violation of Title VII of the Civil Rights Act, as amended,
("Title VII") 42 U.S.C. § 2000e, et seq. (Count One); and (2)
deprivation of plaintiff's liberty in violation of the due
process clause of the fourteenth amendment to the United States
Constitution (Count Two). Defendants now move to dismiss under
Fed.R.Civ.P. 12(b)(6). For the reasons stated in this
Memorandum Opinion and Order, defendants' motion is denied.
In 1981, Charlotte Evans applied for the job of firefighter
with the City of Evanston. At that time, she took a physical
agility test, consisting of five events which are intended to
simulate the normal duties of a firefighter: (1) aerial ladder
climb, (2) ladder climb, (3) ladder carry and set-up, (4) hose
connect, and (5) obstacle course. The test was scored by the
total time in which an applicant completed the five events.
Evans completed the physical agility test within twenty minutes
and received a passing score. She then passed a written
examination and was placed on a final list of eligible
candidates, but her name was not reached.
Evans reapplied for the position of firefighter with the City
in 1983, when the next firefighter examination was given. The
1983 physical agility test consisted of the same events used in
the 1981 examination. Prior to taking the physical agility
test, Evans attended an orientation session sponsored by the
City of Evanston. At this session, Evans was informed that any
applicant who successfully completed all events would receive a
passing score and be permitted to take the written examination.
Also prior to the test, Evans received a two-page written
"Firefighter Applicant Information Summary" which described the
physical agility test and stated: "Whether you pass or fail the
[physical agility] examination will be determined by the total
time to complete all of the exercises, including rest time."
Evans completed the 1983 physical agility test in a total time
of fourteen minutes and forty seconds, improving by more than
five minutes upon her 1981 time. Even so, Evans was informed
that she had failed the 1983 physical agility test. The cut-off
passing time was determined upon the application of standard
deviations to the 1983 scores. The 1983 physical agility test
was taken by 793 males, of whom 738 (or 93%) passed, and 39
females, of whom 5 (12.38%) passed.
On January 16, 1983, Evans filed a formal grievance with the
City of Evanston, which was denied in a written finding dated
March 19, 1984. Evans filed a timely charge of employment
discrimination with the EEOC and a "right to sue" letter was
issued on September 14, 1984.
The Title VII Claim
Count Two of the Amended Complaint alleges that plaintiff and
other female applicants who took the 1983 physical agility test
were denied equal employment opportunities in violation of
Title VII because the test was not job related and it had a
disparate impact upon female applicants. Defendants move to
dismiss Count Two on the grounds that plaintiff has failed to
allege intentional and purposeful discrimination and thus, they
argue, has failed to state a cause of action under Title VII.
Defendants have misinterpreted the requirements of Title VII.
Although Evans does not specify which section of Title VII she
relies upon, the Amended Complaint states a cause of action
under Section 703(a)(2) of Title VII, which provides in
It shall be an unlawful employment practice for an employer —
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or national
42 U.S.C. § 2000e-2(a)(2). Under the Supreme Court's
construction of this provision, relief is provided based upon
disparate impact alone. E.g., Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Dothhard v.
Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977);
Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d
Griggs and its progeny have established a three-prong
analysis for disparate impact claims. To establish a prima
facie case of disparate impact, a plaintiff need only show
that a facially neutral policy had a disproportionate impact on
a protected group. If the plaintiff succeeds, then the employer
must demonstrate that the policy is job related. Even in such a
case, however, the plaintiff may prevail by showing that the
policy is a mere pretext for discrimination. Connecticut v.
Teal, 457 U.S. at 447, 102 S.Ct. at 2531 (and cases cited
therein). Proof of discriminatory motive is simply not required
under a "disparate-impact," as opposed to a "disparate
treatment," theory. International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n.
15, 52 L.Ed.2d 396 (1977).
Plaintiff in the instant case has pled satisfactorily a
disparate impact claim under Title VII. She has shown that the
administration and grading method of the physical agility test
had a disproportionate effect on women applicants: in 1983, 93%
of the male applicants passed the test, as compared to less
than 13% of the female applicants.*fn3 Defendants argue that
the test is job related because it consists of tasks required
to be performed during normal firefighting duties. The
plaintiff, however, asserts in the Amended Complaint that the
test, at least as it was graded, is not job related because it
measures only speed and fails to take into account foresight,
endurance, and pacing, which are also essential to performance
of the job of firefighter. On the pleadings, then, the City of
Evanston has failed to rebut the plaintiff's prima facie case
of a Title VII violation. For this reason, defendant's motion
to dismiss Count Two is denied.
The Due Process Claim
Count One of the Amended Complaint alleges that plaintiff Evans
was deprived of her liberty without due process of law in
violation of the fourteenth amendment. Defendants move to
dismiss the fourteenth amendment claim on two separate grounds.
First, defendants confuse the two branches of the fourteenth
amendment. They devote an inordinate amount of effort to citing
cases which establish that purposeful discrimination is an
essential element of an equal protection claim and arguing that
plaintiff has failed to allege facts necessary to prove
intentional discrimination. Because the fourteenth amendment
claim in the Amended Complaint is based solely
on the due process clause, defendants' argument on this ground
Defendants also, however, imply that the due process claim
should be dismissed because the "liberty interest" of which
plaintiff claims she was deprived does not exist.*fn5
Plaintiff alleges that she has a "liberty interest" in being
permitted to take the written examination after successful
completion of the physical agility test. Because an instructor
at the orientation session allegedly informed the class that
any applicant who completed all of the events in the physical
agility test would receive a passing grade and be permitted to
take the written examination, plaintiff claims she was deprived
of her liberty without due process of law by the Director of
Personnel's actions in either changing the manner of grading
the physical agility test or, in the alternative, failing to
train or supervise the orientation session instructor.
The courts follow a two-step analysis when assessing due
process claims. First, a plaintiff must identify a life,
liberty, or property interest within the meaning of the clause;
and second, the degree of process due must be determined.
Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982). Plaintiff
must demonstrate that her claimed liberty interest is grounded
in "state law, a well-established understanding between the
parties, or a course of conduct which creates substantial
limits on the discretion of state individuals." Bara v. Aurora
Civil Service Commission of City of Aurora, Illinois,
580 F. Supp. 212, 214 (N.D.Ill. 1983). Although the due process
claim may be inartfully pled, this Court finds that plaintiff
has a liberty interest in engaging in the occupation of
firefighter which the City of Evanston may not arbitrarily take
The Seventh Circuit established in DiIulio v. Board of Fire
and Police Commissioners of City of Northlake, 682 F.2d 666
(7th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74
L.Ed.2d 605 (1982) that there is a liberty interest in
"engag[ing] in any occupation" which the government may not
arbitrarily take from an individual. Thus, the court found that
where police officers are promoted based on a promotion
examination, that examination must be rationally related to the
qualifications of the police sergeant job. Id. at 669.
Defendants' citation of Bishop v. Wood, 426 U.S. 341, 96
S.Ct. 2074, 48 L.Ed.2d 684 (1976), is inapposite here. In
Bishop, the Court held that the discharge of a public
employee whose position was terminable at will did not deprive
the plaintiff of his liberty. In both DiIulio and the instant
case, however, unlike in Bishop, there was a limit to the
discretion of the municipal officials making the personnel
decisions: here, individuals became eligible for the position
of firefighter upon passing two objective examinations.
Thus, in this case, as in DiIulio, plaintiff has a liberty
interest in the firefighter position so that the eligibility
examinations must be rationally related to the qualifications
of the firefighter job. Because the Amended Complaint does
allege that the physical agility test, as administered, was
arbitrary, defendants' motion to dismiss Count One of the
Amended Complaint is denied.